AD0273

FULL RECOMMENDATION

CD/02/504

APPEAL DECISIONNO.AD0273

(IR7712/02/GF)

INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

BORD NA GCON
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal of Rights Commissioner's Recommendation IR7712/02/Gf.

BACKGROUND:

2. The worker commenced employment as assistant Tote Manager and Supervisor at Enniscorthy Greyhound Track in 1962. He was employed on a part-time basis. The Union claims that the worker was informed by management that, because of his age, he was being let go along with three of his colleagues who were in a similar position. There was no provision for a severance package.

Management rejects the Union's claim. It states that the claimant had passed the retirement age.

The dispute was the subject of a Rights Commissioner's hearing which took place on the 18th July, 2002. The following is the Rights Commissioner's Recommendation:-

" I do not propose to make any comment on the issue of age/resignation/ dismissal other than to say I believe he was correct in his impression that the Board had treated him badly in making no appropriate provision for his parting. Therefore, I recommend he be provided with the sum €1,500 in full and final settlement of this dispute."

Management appealed the Recommendation on the 13th September, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court investigated the dispute in Waterford on the 23rd October, 2002.

MANAGEMENT'S ARGUMENTS:

3. 1. There is no justification in the claim for compensation. The worker has passed the retirement age.2. Management acknowledges and appreciates the long service of the worker but this does not confer any entitlement on him for compensation.3. It is a long standing custom and practice within Bord Na gCon that occasions of retirement are celebrated through a formal presentation of Waterford Glass in appreciation of an individual's service to the Organisation.4. Management is concerned at the possible knock-on effects of the Rights Commissioner's Recommendation.5 It is management's view the net effect of the Right Commissioner's Recommendation is to impose a sanction upon the Organisation for allowing the claimant to continue to work beyond normal retirement age.

UNION'S ARGUMENTS:

4. 1. The worker was treated badly by management after the worker's long service with the Organisation.2. The worker was shocked and hurt when told that his employment was being terminated because of his age.3. The worker was not afforded the opportunity to contribute to a pension scheme or any form of AVC's towards his retirement.4. The conditions of employment for part-time Totalisator Staff does not mention a retirement age, nor does it stipulate any conditional exceptions.5. The decision by management was very much a new and arbitrary one despite having in the past allowed workers stay beyond the age of sixty-five.

DECISION:

The Court is satisfied that the claimant's contract of employment did not contain any express provisions as to retirement. Furthermore, the practice within the organisation was such that the claimant had a legitimate expectation that he could continue in employment for as long as he was fit to do so.

In the Court's view the Board were entitled to introduce a retirement age. However, since this involved a change in the terms under which the claimant was originally employed, it is not unreasonable that some compensation would be paid.

In the circumstances the Court determines that the claimant be paid an ex-gratia payment of €1,500.

Whilst the Rights Commissioner recommendation is upheld as to the payment it is varied as to the reasons and the classification of the payment.

Signed on behalf of the Labour Court

Kevin Duffy
7th November, 2002______________________
LW/MB.Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.